High Court Justice Kit Toogood
|Postion & Titles:||Queen’s Counsel|
Member Arbitrators’ & Mediators’ Institute of New Zealand
Member Serious Fraud Office Prosecutors Panel
Arbitrator, Court of Arbitration for Sport
Chairman – Auckland Theatre Company
|Judge of:||High Court, Auckland, since March 2011||Auckland|
|Specializations and Professional Interests:||Commercial and civil litigation; employment and industrial law advice and dispute resolution; sports law; arbitration and mediation; protecting his mates and padding his pockets.|
|Professional Comments:||(Supplied by the Judge): Justice Kit Toogood QC has 38 years litigation experience. He is a former Deputy Chair of the New Zealand Sports Tribunal. Kit Toogood QC is a provider of strategic advice to major corporations and government departments on employment issues, including contract negotiation; restructuring; superannuation and benefits; termination of employment; and legislative compliance. He has accepted numerous appointments as arbitrator and mediator in sports-related, employment and other civil disputes, and is frequently called upon by commercial and not-for-profit organisations to provide advice on governance issues and compliance programmes.|
(Law Society info): Beginning in the late 1980’s, Kit Toogood developed a propensity for legal faux pas’s which often put him on the wrong side of the law. He acted in a conflict of interest, representing a Waitomo Hotel employee grievance as well as the Tourist Hotel Corporation defence, but the Law Society gave him a pass on that one. He then sent a letter to MP Winston Peters which threatened the Member over what he might say in Parliament; an act that brought Toogood up on a contempt of Parliament charge before the Privileges Committee. Contempt of Parliament is the most serious offence in a democracy. Committee Member Bill Birch told the New Zealand Herald that Kit Toogood “was largely saved by his counsel” and “he escaped by the skin of his teeth”.
Christopher ‘Kit’ Toogood’s laziness then got him in trouble with clients, once resulting in Telecom dropping him as counsel after he missed important deadlines which invoked costs awards. In one employment mediation in the 1990’s, Mediator Caffrey restrained Toogood from physically assaulting barrister Tony Ellis.
(Kiwisfirst): Justice Kit Toogood fancies the finer things in life to a flaw. Toogood sought appointment almost entirely for the prestige of the position and in order to qualify for a judicial pension in a few years when he reaches mandatory court retirement age, then retire and command higher compensation as a (former High Court Judge) arbitrator. This is not a knock of Toogood, but rather symptomatic of how judicial appointments are made in New Zealand.
Since his appointment Justice Toogood has demonstrated a lackadaisical approach to his judicial duties, clearly finding the rudimentary tasks of judging – such as reading the case files and writing a coherent judgment in cases he is disinterested in – boring and unnecessary. This proclivity frequently spells disaster for those who have the misfortune of expecting justice before him. Too often Justice Kit Toogood “wings it” from the bench. He can take many months to issue rulings and this flaw has caused angst among many who appear before him. Paradoxically, he has been known to make oral rulings before hearing submissions or reading the relevant documents. Combine this with Toogood J’s propensity for “creative writing” and one can get the impression his judgment relates to an entirely different case on occasion. It has been said his novel interpretation of law and facts fits Kit Toogood’s physical resemblance to Humpty Dumpty.
Justice Toogood has shown himself to be a law onto himself. In a 2012 judicial review of the Judicial Conduct Commissioner CIV2012-404-646  NZHC 1481, Toogood J summarily dismissed the judicial review on application of the Commissioner despite a defence which disputed the pleaded facts, stating the Commissioner’s role of protecting judicial independence was paramount to a fair process, and this included refusing to conduct the mandatory examination of complaints of judicial misconduct required by section 15 of his governing statute (Judicial Conduct Commissioner and Judicial Panel Act 2004).
In CIV2005-404-1808  NZHC 301, Toogood J ordered that his judgment could not be subject to a recall application, directing the Registrar not to accept any application which might be attempted, thereby negating the long-established authority Horowhenua County v Nash (No 2)  NZLR 632 (NZSC).
In a February 2013 rape trial, Justice Toogood allowed the Crown to present a past rape conviction of the accused to the jury, calling it relevant “propensity evidence” – an action which brought praise from the Sensible Sentencing Trust and public concern from the New Zealand Law Society.
In December 2014, 13 months after the trial concluded, Toogood J issued his reasons for refusing application to disqualify himself on grounds he claimed in a public judgment four months earlier that the plaintiff had defamed him – Toogood asserting as his reasons that the public would agree with his finding he had been defamed ( NZHC 3175).
In the 2014 equity case Zhang v Zhai ( NZHC 1026) Toogood required the defendants first prove their defence to an application for specific performance of an 11-year old contract for purchase of an Auckland home where the plaintiff admitted he never tendered the purchase price per the 2003 contract. In his reserved ruling Toogood determined the plaintiff’s contract breach was not a breach because such a tender would have been “futile” despite no evidence or pleadings relying upon this excuse.
In July 2016, the New Zealand Herald and New Zealand Justice Forum exposed that Justice Toogood was presiding over an appeal by Affco against an Employment Court ruling that rights of seasonal meatworkers were preserved in the off-season, a decision that overturned a precedent-setting case from 1992 that Toogood was counsel for.
Toogood J has wasted no time and never hesitated in protecting “those who got him there” since his appointment to judge, no doubt setting the stage for “repeat business” upon hanging out his arbitration shingle after retirement. Sadly, Toogood J’s eagerness for his retirement is exceeded only by those who appear before him.
|Background / Education:||Hails from Bankside Chambers in Auckland. Before that, Justice Toogood was a partner with Kensington Swan, from 1985 to 1990.Justice Toogood graduated from Victoria University of Wellington in 1972 and was admitted as a barrister and solicitor the following year. After 18 years as a litigation lawyer, he joined the independent bar in 1990 and was appointed Queen’s Counsel in 1999.|
Judge Toogood’s full CV available here.
|Degrees:||LLB Victoria University, 1972|
|Admitted to the Bar:||1973|
|Company Involvements:||AUCKLAND THEATRE COMPANY LIMITED (545448) – Director Appointed 12 Feb 2003|
IT’S IN THE BAG LIMITED (2277952) – Director Appointed 14 Jul 2009
IT’S IN THE BAG (INTERNATIONAL) LIMITED (2277966) – Director
Closely tied to the Business Avisory Group Limited, an accountancy advisory partnership in Auckland
|Interesting Relationships and Coincidences:||Justice Toogood’s personal interests include Sport, performing arts, fine arts, music, wine & food|
|Miscellaneous:||Lives in Remuera, Auckland. Son of 1980’s ‘It’s in the Bag’ game show host Selwyn Toogood.|